| The philosophy of Emmanuel Levinas frames a critique of social contract theory's recourse to fictions of origin and consent. At the heart of Levinas' philosophy is responsibility-for-the-other, an avolitional pre-legal relation without which law itself would not be possible. As a relation, this responsibility is not the same as a rule or a norm. At issue for social contract theory is the question of how to justify law or obligation: the violence or insecurity attributed to the state of nature demonstrates to us why law ought to be chosen. Theories of consent then establish that a law to which one would have given one's assent is justified, thus recasting something avolitional as a product of will. In so doing such theories pass over what matters about some forms of obligation: that we never had the opportunity to choose them. The dissertation argues that for thinkers as varied as Hobbes, Rousseau and Rawls (chapters 3, 4 and 5, respectively), 'consent' is a theme that makes law legitimate even while the surrounding theory quietly undermines the free choice for which consent is supposed to stand. I argue that if human beings are to take on the true weight of human responsibility for law in a secular world, law needs an account of obligation that does not look first for justification in consent. In the world bequeathed to us by the genocidal twentieth century, human responsibility for law is all we have. And it is a weight to which many of us would not have consented, had we been given the choice. The dissertation's theoretical concerns matter to law and political theory precisely because contemporary global justice is haunted by questions that cannot be answered by theories relying on law's justification by consent: Who is responsible for the refugee, the homeless person? Who has a duty to uphold international human rights? Levinas' philosophy of human subjectivity helps us to focus, instead of on the justification and legitimacy of legal systems, on what must underlie a theory of justice: what kind of being is capable of conceiving of justice, and of aspiring to it?... |
